1. Applicant's Name: a. Application Date: 9 April 2020 b. Date Received: 15 April 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: The current characterization of service for the period under review is genera (under honorable conditions). The applicant requests an upgrade to honorable and a narrative reason change. The applicant seeks relief contending, in effect, deployment presented many challenges for the applicant and the applicant began to battle internally from issues dealing with the unit and family. The applicant had honorable service, including a deployment. The applicant's mental health deteriorated over the duration of the time overseas and the applicant sought behavioral health services. The applicant had to undergo surgery for an injury sustained on deployment during a training exercise. Using marijuana was only a means for the applicant to cope. Another Soldier with similar offense was allowed to remain on active duty. The applicant's previous chain of command left and there was no one to speak on the applicant's character or performance. The applicant contends the separation process did not occur in accordance with the governing regulation and the applicant received very little guidance, which furthered the applicant's depression and anxiety. After the separation, the applicant began utilizing mental health resources with the Department of Veteran Affairs (VA) and became drug free. An upgrade would allow the applicant the opportunity to utilize the GI Bill. b. Board Type and Decision: In a records review conducted on 24 March 2023, and by a 5-0 vote, the Board determined the discharge is inequitable based on the applicant's length of service and combat service outweighing the applicant's one-time drug use. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN, and the reentry code to RE-3. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Drug Abuse) / AR 635- 200 / Chapter 14-12c (2) / JKK / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 21 January 2018 c. Separation Facts: (1) Date of Notification of Intent to Separate: 3 October 2017 (2) Basis for Separation: The applicant was informed of the following reasons: The applicant tested positive for marijuana on 9 January 2017. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: NIF (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 24 October 2017 / General (Under Other Than Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 6 January 2015 / 6 years b. Age at Enlistment / Education / GT Score: 22 / HS Graduate / 112 c. Highest Grade Achieved / MOS / Total Service: E-3 / 88M10, Motor Transport Operator / 3 years, 16 days d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: SWA / Kuwait (11 March 2016 - 1 December 2016) f. Awards and Decorations: NDSM, GWOTEM, ASR, OSR, Sharpshooter Marksmanship Qualification Badge-Machine Gun Bar g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Electronic copy of the DD Form 2624, dated 27 January 2017, reflects the applicant tested positive for THC-50 during an Inspection Unit (IU) urinalysis testing conducted on 9 January 2017. Law Enforcement Report Initial-Final, dated 17 February 2017, reflects an investigation established the applicant committed the offense of Wrongful Use of Marijuana - Detected by Urinalysis conducted on 9 January 2017. FG Article 15, dated 1 May 2017, reflects the applicant wrongfully used marijuana on or about 9 January 2017. The punishment consisted of reduction to private/E-1 and extra duty and restriction for 45 days. i. Lost Time / Mode of Return: None j. Applicant Provided and/or AMHHR Listed PTSD / TBI / Behavioral Health Condition(s): A Report of mental Status Evaluation (MSE), dated 21 July 2017, reflects the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The applicant was diagnosed with major depressive disorder (MDD), recurrent and insomnia. The applicant provides VA Rating Decision (pages 3-17), which reflects, in part, the applicant had a service connection for MDD with periods of anxiety, recurrent, mild (claimed as depression with anxiety) with an evaluation of 70 percent effective 22 January 2018. The applicant had a service connection for obstructive sleep apnea (claimed as sleep apnea) with an evaluation of 50 percent effective 22 January 2018. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, personal statement, medical documents, Certificate of Achievement-2, Certificate of Completion, Documents from separation file (including letters of support), VA Decision Rating (pages 3-8). 6. POST SERVICE ACCOMPLISHMENTS: The applicant began utilizing mental health resources with VA and became drug free. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 1 set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. It states, in part, processing time when the unification procedure is used will not normally exceed 15 working days. Failure to process an administrative separation within the timeframe will not prevent separation or characterization of service. (2) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (3) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (4) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (5) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (6) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (7) Paragraph 14-12c (2) terms abuse of illegal drugs as serious misconduct. It continues; however, by recognizing relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14- 12a or 14-12b as appropriate. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 12c(2), misconduct (drug abuse). 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant's Army Military Human Resource Record (AMHRR), the issues and documents submitted with the application were carefully reviewed. The applicant requests an upgrade to honorable and a narrative reason change. The applicant requests the narrative reason for the discharge be changed. The applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200 with a general (under honorable conditions) discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Drug Abuse)," and the separation code is "JKK." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214, and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be listed in tables 2-2 or 2-2 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends deployment presented many challenges for the applicant and the applicant began to battle internally from issues dealing with the unit and family and using marijuana was only a means for the applicant to cope. The applicant had many legitimate avenues through which to obtain assistance or relief, and there is no evidence in the record that the applicant ever sought such assistance before committing the misconduct which led to the separation action under review. The applicant states there was honorable service, including a deployment. The Board will consider the applicant's service accomplishments and the quality of service according to the DODI 1332.28 The applicant's mental health deteriorated over the duration of the time overseas and the applicant sought behavioral health services. The applicant's AMHRR contains documentation which supports a diagnosis of in-service MDD, recurrent and insomnia. The record shows the applicant underwent a MSE on 21 July 2017, which indicates the applicant could understand and participate in administrative proceedings and could appreciate the difference between right and wrong. The MSE was considered by the separation authority. The applicant provides VA Rating Decision (pages 3-17), which reflects, in part, the applicant had a service connection for MDD with periods of anxiety, recurrent, mild (claimed as depression with anxiety) with an evaluation of 70 percent effective 22 January 2018. The applicant had a service connection for obstructive sleep apnea (claimed as sleep apnea) with an evaluation of 50 percent effective 22 January 2018. The applicant contends another Soldier with a similar offense was allowed to remain on active duty. Applicable regulations state each case must be decided on an individual basis, considering the unique facts and circumstances of the case. The applicant contends the separation process did not occur in accordance with the governing regulation and the applicant received very little guidance which furthered the applicant's depression and anxiety. AR 635-200, Chapter 1, states, in part, processing time when the notification procedure is used will not normally exceed 15 working days. Failure to process an administrative separation within the timeframe will not prevent separation or characterization of service. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant began utilizing mental health resources with VA and became drug free. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. No law or regulation provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life after leaving the service. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character The applicant states an upgrade would allow the applicant the opportunity to utilize the GI Bill. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially mitigating diagnoses: Adjustment Disorder and Major Depressive Disorder (MDD). (2) Did the condition exist, or experience occur during military service? Yes. The applicant held in-service diagnoses of Adjustment Disorder and MDD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The Board's Medical Advisor determined that the medical conditions do not mitigate the basis of separation. However, per ARBA guidance, the applicant's assertion behavioral health difficulties influenced misconduct alone affords partial mitigation. (4) Does the condition or experience outweigh the discharge? No. The Board's Medical Advisor, a voting member, applied liberal consideration and opined that the applicant's diagnoses do not impact the ability to make conscious, purposeful choices understanding the consequence. Moreover, the applicant has stated several times was under stress related to work and family difficulties leading to use rather than a psychiatric condition or experience that could have rendered unable to consider actions and consequences. b. Response to Contention(s): (1) The applicant contends deployment presented many challenges for the applicant and the applicant began to battle internally from issues dealing with the unit and family and using marijuana was only a means for the applicant to cope. The Board considered this contention but determined that the Army has many legitimate avenues available to service members requesting assistance with unit and family issues, and there is no evidence in the official records nor provided by the applicant that such assistance was pursued. The Board concluded that the applicant abusing drugs is not an acceptable response those stressors. Nevertheless, the Board voted that relief was warranted based on review of the totality of the applicant's service record outweighing the one-time drug use. (2) The applicant's mental health deteriorated over the duration of the time overseas and the applicant sought behavioral health services. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board considered this contention and determined that the applicant's BH conditions did not influence behavior as described above in section 9a(4). (3) The applicant contends another Soldier with a similar offense was allowed to remain on active duty. The Board considered this contention but ultimately did not address it due to the applicant not providing specific details, so a generalization of similar discharges cannot be determined as each case is considered on its own merit in relation to the unique facts and circumstances of each case. (4) The applicant contends the separation process did not occur in accordance with the governing regulation and the applicant received very little guidance which furthered the applicant's depression and anxiety. There is no law or regulation which requires that an unfavorable discharge must be upgraded based solely on the Board determination that there was a condition or experience that existed during the applicant's time in service. The Board must also articulate the nexus between that condition or experience and the basis for separation. Then, the Board must determine that the condition or experience outweighed the basis for separation. The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the ARBA when determining a member's discharge characterization. In this case, the Board considered this contention and determined that the applicant's BH conditions did not influence behavior as described above in section 9a(4). c. The Board determined the discharge is inequitable based on the applicant's length of service and combat service outweighing the applicant's one-time drug use. Therefore, the Board voted to grant relief in the form of an upgrade of the characterization of service to Honorable and changed to the separation authority to AR 635-200, paragraph 14-12a, the narrative reason for separation to Misconduct (Minor Infractions), with a corresponding separation code of JKN, and the reentry code to RE-3. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to Honorable because the applicant's length of service and combat service outweighed the applicant's one- time drug use. Thus, the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Misconduct (Minor Infractions) under the same pretexts. The SPD code associated with the new reason for discharge is JKN. (3) The Board voted to change the RE code to RE-3. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: Misconduct (Minor Infractions)/JKN d. Change RE Code to: RE-3 e. Change Authority to: AR 635-200, paragraph 14-12a Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20200007882 1